Free speech doesn’t mean ‘freedom from consequences’

By Paul Russell, AdvocateDaily.com Contributor

Members of regulated professions should be careful about what they post on social media, as even personal messages could impact their professional status, Burlington compliance lawyer Cathi Mietkiewicz tells AdvocateDaily.com.

“Regulated professionals have to be aware of the potential consequences of their online behaviour,” says Mietkiewicz, principal of Mietkiewicz Law. “If a complaint is filed to their regulatory body, they could find themselves in trouble for comments they thought they were making in a personal capacity.”

She cites two recent cases to prove her point. The first involved a nurse who was fined $1,000 by the Saskatchewan Registered Nurses' Association and ordered to pay fees in the amount of $25,000 to contribute to the costs of the hearing after she criticized her grandfather's palliative care in a social media post.

The nurse did not work for the care facility where her grandfather was receiving treatment. According to a CBC story, she posted that it was "evident that not everyone is 'up to speed' on how to approach end-of-life care or how to help maintain an aging senior's dignity.”

The legal counsel for the nursing association said that statement crossed the line, telling the CBC, “You still have to be careful about what you say, how you say it, through what channel you say it because you're on 24/7.”

Mietkiewicz agrees, saying with regulated professionals, there are myriad behaviours that could be considered conduct unbecoming, including actions that would reasonably be regarded by peers as conduct unbecoming a member of the profession.

“You can never take your professional hat off,” she says. “People who are reading your post don’t know you are not saying something in your professional capacity,” noting the woman identified herself as a nurse in the post.

“Social media comments get a different weight if you are a member of that profession,” Mietkiewicz says. “A nurse complaining about other nurses is more serious than a patient complaining about nurses.

“Regulated professionals tend to think they can speak as private individuals. In most cases they can’t, as others reading the comment will not know the difference,” she says.

The second example involves a Congressman accused of threatening a former presidential aide ahead of his congressional testimony, Mietkiewicz says.

Since that Congressman is also a member of the Florida Bar Association, an MSN story notes that someone complained that making a threat is contrary to Florida Bar’s code of ethics for lawyers.

“We may never hear anything else about this case, but the common thread between it and the one involving the Saskatchewan nurse is the misuse of social media,” Mietkiewicz says.

She says that when a member of a regulated profession says something on social media that is not related to their professional capacity, regulators struggle with what is called off-duty conduct.

“The important message that regulators have to get across to members is that you can never take your hat off,” she says. “Regulators are struggling to create codes of ethics that give their members guidance about their use of social media.”

Mietkiewicz says most regulatory bodies have now created social media policies outlining what is acceptable online, during work hours and after work.

“There is a real challenge in crafting these social media guidelines,” she says. “There are no black-and-white rules. This is an issue that requires a more nuanced solution, which will have to be revisited as social media develops and changes.”

Another CBC story reported that the lawyer for the Saskatchewan nurse argued that freedom of speech gave her the right to express private opinions on Facebook. The judge disagreed, and so does Mietkiewicz.

“Freedom of speech does not mean freedom from the consequences of that speech,” she says.

Mietkiewicz says regulators need to have strong policies that clearly spell out what is expected from members concerning social media posts.

“Regulators want to be proactive in preventing misconduct,” she says. “The challenge is to get that message out to members, and to make sure they are aware of the expectations.”

Even non-regulated professions are wary of employees whose actions hurt their image, says Mietkiewicz recalling a man dubbed the “beer can guy” in a CBC report, who was vilified for throwing a beer can onto the field during a Blue Jays game in 2016.

“Since the public knew where he worked, it reflected poorly on his employer,” she says. “Bad behaviour by a member of any industry will reflect poorly on the entire workforce, and may bring the profession into disrepute.”